Topic:
COURT PROCEDURE; FREEDOM OF INFORMATION; JUDGES; COURT RECORDS; PRESS;
Location:
JUDICIAL PROCEDURE;

OLR Research Report


January 3, 2007

 

2007-R-0034

ACCESS TO JUDICIAL RECORDS, MEETINGS, AND PROCEEDINGS

By: Sandra Norman-Eady, Chief Attorney

George Coppolo, Chief Attorney

Susan Price, Principal Legislative Analyst

Chris Reinhart, Senior Attorney

You asked that we summarize and compare the recommendations of the Governor's Commission on Judicial Reform (commission) with those of the Judicial Branch's Public Access Task Force (task force). In OLR Report 2007-R-0024, we summarize the task force's recommendations and compare them to the commission's recommendations.

SUMMARY

Governor Rell appointed a Commission on Judicial Reform to “survey judicial rules, policy and procedures regarding access to court operations and to make recommendations on greater transparency.”  The commission made its recommendations in October 2006. Senior Associate Justice David M. Borden appointed the Judicial Branch Public Access Task Force in May 2006. The mission of the task force was to make recommendations for the maximum degree of public access to the courts, consistent with the needs of the courts in discharging their core functions of adjudicating and managing cases. It reported its recommendations in September of 2006.

The reports of both groups make recommendations on a wide range of judicial matters, notably (1) public access to court records, (2) the presence of cameras and electronic media in the courts, (3) open meetings, and (4) responding to complaints regarding judges. A number of recommendations of both groups were adopted by divided votes and the reports include minority reports.

There are broad similarities between the recommendations of the commission and those of the task force. Both recommend greater public access to court records, although the commission recommends that this be done by statute while the task force recommends primarily a change in Judicial Branch policies and rules. Both recommend that cameras and electronic media generally be permitted in the Appellate and Supreme courts. The commission recommends that a pilot program be established to permit such coverage in some superior courts while the task force recommends opening most Superior Court civil proceedings to coverage and a pilot program for criminal proceedings. Both reports recommend that meetings of the judicial rules committees and the executive committee of the Superior Court be open to the public. In a number of cases, the reports recommend that the status quo be maintained. For example, both reports recommend that no change be made regarding public access to judicial evaluations forms.

Among the major differences between the reports are:

1. the commission's recommendations regarding access to records only deal with administrative records, while the task force addresses access to a broader range of records;

2. the task force has broader provisions allowing cameras and electronic media in civil proceedings; and

3. the task force's recommendations regarding open meetings apply to a broader range of judicial bodies, but also have provisions for their going into closed session.

A number of issues are only addressed in one report. Notably:

1. the task force recommends that the legislature examine the accessibility of criminal files under pretrial diversionary programs with a view toward expanding public access to these files; and

2. the commission recommends that the governor appoint a panel to consider the adoption of a constitutional amendment to clarify rule making authority for Connecticut courts after the Judicial Branch and the legislature have had the opportunity to implement the commission's recommendations.

The task force report is available online at http://www.jud.ct.gov/. The commission report is available at http://www.ct.gov/governorrell/site/default.asp.

Following is (1) background information on the Freedom of Information Act (FOIA); (2) a section by section summary and analysis of the commission's recommendations, including the action the commission recommended to implement each one and summary of any identical or similar recommendation made by the Judicial Branch's task force; and (3) a table that briefly describes the commission's recommendations and recommended action and indicates whether the Judicial Branch's task force has a comparable recommendation.

BACKGROUND ON THE FREEDOM OF INFORMATION ACT (FOIA)

Records

FOIA (CGS 1-200 et seq.) identifies the records held by public agencies that must be made available for public inspection and copying. These records must be available unless state or federal law prohibits their disclosure. Some of these prohibitions are in the Act itself but most are scattered throughout the statutes. FOIA also requires that state and local agency meetings be open to the public.

FOIA defines a “public record” as recorded data or information relating to public business prepared, owned, used, received, or retained by a public agency, whether it is handwritten, tape-recorded, printed, photostated, photographed, computerized, or recorded by some other method. The act prohibits agencies from computerizing their records in a way that impairs public access to disclosable information.

Under FOIA, anyone may inspect, scan, or receive copies of public records during regular office or business hours. FOIA sets maximum fees for most copies, but allows agencies to recover costs for others. An agency must waive any fee for copies or transcripts if the requestor is unable to pay it or if the request benefits the public welfare.

Meetings

With respect to public agency meetings, FOIA contains provisions on access; notice; recordkeeping; public participation; closed sessions; and recording, photographing, and broadcasting. Generally, all such meetings, including hearings or other proceedings, must be open to the public unless closed for a statutorily-specified reason. With a few exceptions, any hearing or other proceeding of a public agency is a “public meeting,” as is any gathering or communication among a quorum of a multi-member public agency to discuss any matter over which it has control. This includes individual encounters among the people who make up a quorum, such as a series of telephone calls or a series of personal meetings. “Public meetings” do not include personnel search committee meetings to locate executive level employment candidates, unplanned chance or social meetings, collective bargaining strategy and negotiation sessions, or administrative staff meetings of a single-member agency.

Application

FOIA applies to state and local governmental agencies, departments, institutions, bureaus, boards, and commissions. These include all executive, administrative, and legislative offices, and the administrative functions of the judicial branch and the Division of Criminal Justice.

Administrative function is not defined in statute. What constitutes an “administrative function” was at issue in a recent state Supreme Court decision. In Clerk of the Superior Court, Geographical Area Number Seven v. Freedom of Information Commission, 278 Conn. 28 (2006), the Court held that records related to the branch's adjudicatory functions are categorically exempt from disclosure and “administrative functions” are those relating to the branch's budget, personnel, facilities, and physical operations of the courts (see OLR Report 2006-R-0315 for a summary of this case).

The Freedom of Information Commission (FOIC) hears complaints from people who have been denied access to public agency records or meetings and compels compliance where necessary.

RECOMMENDATIONS OF THE GOVERNOR'S COMMISSION ON JUDICIAL REFORM

First Recommendation: Define “Administrative Function” as Used in FOIA

The commission recommends defining “administrative functions” as (1) all matters not directly related to judicial activities in, and discussions concerning, court cases and (2) those matters that relate to the management of the internal institutional machinery of the Judicial Branch, including budgeting, accounting, rulemaking, personnel, facilities, physical operations, docketing and scheduling.

Discussion. The commission's definition is very similar to the definition adopted by the Court in Clerk of the Superior Court, Geographical Area Number Seven v. Freedom of Information Commission, except the commission's definition specifically makes rulemaking, docketing, and scheduling administrative functions.

The amendment would make rulemaking, docketing, and scheduling records subject to public disclosure. If such records are not disclosed in accordance with FOIA, anyone denied access could file a complaint with the Freedom of Information Commission, which can compel compliance (CGS 1-205).

Action Recommended. Statutory change.

Comparison with Judicial Task Force. The task force recommends a change to judicial policy to make meetings open to the public and require that notice of their time and place and a copy of their agenda be posted on Judicial Branch's website at least 48 hours in advance. The recommendation for openness does not apply to meetings or committees called or formed to discuss judges' education or training. The task force's recommended definition of meeting is narrower ( 1, 9, and 20).

Second Recommendation: Presumption that Appellate Proceedings are Open for Broadcasting, Televising, Recording, and Photographing

The commission recommends explicitly stating a presumption that appellate proceedings are open for broadcasting, televising, recording, and photographing. Someone who objects to coverage must prove that his interests will be unduly prejudiced.

The Judicial Branch must collaborate with the Connecticut Council on Freedom of Information, the Connecticut Broadcasters Association, and CT-N to set rules for using video, audio, and photography equipment to provide reasonable coverage of proceedings without interfering with the fairness of the proceeding.

Action Recommended. Court rules.

Comparison with Judicial Task Force. Both reports recommend a presumption of openness but the Judicial Branch's task force provides more details of who may object to media coverage, how that process works, and what standard the court would apply. The Governor's Commission recommends collaboration with other organizations to set rules for reasonable coverage while the task force discusses camera placement. The task also force includes an additional recommendation of reviewing still photography technology ( 29).

Third Recommendation: Three Year Pilot Program for Broadcasting Superior Court Proceedings

The commission recommends that the Judicial Branch, Connecticut Council on Freedom of Information, Connecticut Broadcasters Association, and CT-N collaborate to implement a pilot program. The Judicial Branch should evaluate the program and report to legislative oversight committees by January 1, 2010.

Action Recommended. Legislative action and funding through public sources, private sources, or both.

Comparison with Judicial Task Force. Instead of a pilot program for all Superior Court proceedings, the Judicial Branch task force recommends opening Superior Court civil proceedings to the media, subject to certain rules, and a two-year pilot program for criminal proceedings, with the exception of arraignments which they believe require further study. The task force's criminal pilot program lasts for two years instead of three. Unlike the commission, the task force recommendations include criteria for choosing the pilot programs' location and do not specifically require collaboration to implement the program. The task force recommends that the Judicial-Media Committee, instead of the Judicial Branch, evaluate the program and does not require a report to the legislature. The task force also specifies that its pilot program would continue if the judges do not take any action ( 30-32).

Fourth Recommendation: Rules for Superior Court Pilot Program

The commission recommends that the courts adopt rules for the pilot program including the following.

1. All court proceedings are presumed open for broadcasting. A party, witness, or crime victim who objects must prove that using these devices will unduly prejudice his interest.

2. A “proceeding” is defined as “any matter which is being officially recorded, at which a judge and one or more parties, or their counsel, are present and for which a judicial decision may be rendered.”

3. Courts should remove all unnecessary, difficult, unworkable, and impractical barriers to broadcasting.

4. The prohibition on broadcasting in courthouses outside specific courtrooms should be removed and the public portions of courthouses should be treated like other public building, with reasonable and appropriate security and privacy rules.

5. A judge can limit broadcasting in the least restrictive way that addresses the reason for doing so. He must give due consideration to protecting the identity of jurors, crime victims, informants, undercover agents, relocated witnesses, juveniles, and individuals in comparable situations.

6. To the extent possible, broadcasting equipment and operators must be located to provide optimum coverage without interfering with the proceeding or distracting participants. This does not limit the judge's authority to control the courtroom or proceedings in the interest of justice or a fair proceeding.

7. The judge, when necessary for the orderly conduct of a proceeding, can require a pooling arrangement of those who want to televise proceedings. If necessary or advisable, he can hold pre-hearing conferences with the parties, attorneys, and those who want to televise proceedings to minimize problems and ensure compliance with the rules and conditions.

8. Crime victims must receive notice of a request for electronic media coverage and have an opportunity to object and be heard on the issue.

Action Recommended. Court rules.

Comparison with Judicial Task Force. The task force recommends opening civil proceedings to media coverage and a pilot program for criminal proceedings, while the commission recommends a pilot program for all Superior Court proceedings. The rules that the task force applies to civil proceedings and its criminal proceedings pilot program are similar to the commission's pilot program rules.

They state a general rule of openness and provide an opportunity for certain individuals to object. But the task force includes more details about the hearing process for objections, uses different standards for objecting to media coverage, and allows the court to object on its own motion. Both reports authorize media pooling.

Unlike the task force, the commission recommends opening public areas of courthouses to media coverage. The commission also recommends that courts remove barriers to coverage and that crime victims receive notice of a media request for coverage.

Unlike the commission, the task force recommends prohibiting coverage of jurors. In civil and criminal proceedings, the task force requires media to provide advance notice of intent to broadcast, video, photogram, or audio record proceedings ( 30-32).

Fifth Recommendation: Create Judicial Media Committee

The commission recommends that the Judicial Branch, Connecticut Council on Freedom of Information, Connecticut Broadcasters Association, and CT-N create a Judicial Media Committee to promote communication between the Judicial Branch, media, lawyers, and others. The committee must foster and improve understanding and relationships between the Judicial Branch and the media and discuss and recommend solutions to problems the media and public face in gaining access to court proceedings and documents. It must meet regularly. It operates under the policies that apply to Judicial Branch committees.

A member of the Supreme Court and a media executive chair the committee. Members include (1) representatives of print and electronic media; (2) judges; (3) members of the bar association; (4) the state victim advocate, chief public defender, and chief state's attorney or their designees; and (5) others with experience and expertise that could benefit the committee.

The committee must form a quick-response team of judges and reporters to review questions and disputes about access to judicial proceeding and recommend solution on the same day.

The committee must also educate the public about access to judicial proceedings.

Action Recommended. Not specified. (The Judicial Branch has appointed members to such a committee and it will hold its first meeting early next year.)

Comparison with Judicial Task Force. Both reports require creation of a Judicial Media Committee. The task force does not specify that certain organizations must form the committee, as the commission does. The task force does not include the state officials on the committee that the commission does, but does include a victim representative ( 28 and 35).

Sixth Recommendation: Amend CGS 46b-122 by Adopting Legislation Proposed in HB 5812 (2005 Reg. Sess.) Which Opens Proceedings Concerning Abused, Neglected, Uncared For, and Dependent Children and Termination of Parental Rights

The commission recommends that the current statute governing the exclusion of the public from abuse, neglect, dependency, and termination of parental rights matters be amended to include a non-exclusive list of factors judges might use to make their decisions. These are the same factors that the House rejected in the 2005 session.

Current law permits family court judges to exclude members of the public, including the press, from courtrooms in the same family relations matters listed in the commission's recommendation. It does not provide judges guidance for making this decision. The recommendation would allow them to consider factors including whether:

1. the person is disrupting, or likely to disrupt, the proceedings;

2. one of the parties, including the child's attorney or court-appointed guardian ad litem, makes a compelling argument in favor of exclusion;

3. exclusion of some or all observers is necessary to protect (1) privacy interests of anyone appearing at the hearings or (2) the child or other parties from harm the need to protect the child and other parties from harm;

4. the person's presence will inhibit testimony or discussion of material information; and

5. options less restrictive than exclusion are available and appropriate for the individual case.

Decisions would have to be made on a case-by-case basis (for example, there could not be blanket exclusions for abuse and neglect cases).

It is unclear whether the recommendation incorporates the provisions of sHB 5812 that would require judges to have a compelling reason for ordering observers not to disclose or use personally identifying information about children, parents, or guardians that they learned during the proceedings. Finding a compelling reason would require the judge to first consider (1) the nature of the allegations; (2) the child's age, maturity, and emotional well-being; (3) potential harm to the child if the information is disclosed; and (4) the public's interest in disclosure.

Action Recommended. Amend CGS 46b-122 to add provisions in sHB 5812 (2005 Regular Session).

Comparison with Judicial Task Force. No comparable recommendation.

Seventh Recommendation: Amend CGS 46b-138 to be Consistent With Practice Book 32a-4 Regarding the Procedure for Interviewing a Child Witness

This recommendation would require judges who interview child witnesses privately to first obtain all parties' consent and allow them to suggest questions and areas of concern that the judge might ask during the interview. The judge must then state on the record what the child told him. The parties' attorneys and the child's parent (if he is not represented by an attorney) must be in the courtroom when the judge puts this statement on the record.

Discussion. The recommendation would reverse the statutory rule making confidential all private conversations between a judge and the child who is the subject of a juvenile matter. Juvenile matters in the civil session (to which the recommendation would apply) include matters concerning:

1. uncared-for, neglected, or dependent children and youth under age 18 (the latter are children whose parents lack necessary resources for meeting cannot meet their special needs);

2. termination of parental rights, other than those that have been resolved by a probate court judge; and

3. emancipating minors.

Neither the existing statute nor the commission's recommendation contains a provision that would permit the court to order that the information he states on the record not be disclosed to the public or the media.

Action Recommended. Amend CGS 46b-138 to conform with P.B. 32a-4.

Comparison with Judicial Task Force. No comparable recommendation.

Eighth Recommendation: Repeal Practice Book 25-59A(h)

The task force recommends that financial affidavits parties must file in family cases (e.g., disputes involving child and spousal support) no longer be automatically sealed as is currently required by 25-59A(h).

Discussion. Rescission of this provision would create a presumption that the public may see and copy these documents. This is the general rule for most other case file documents under what would be the rule's remaining provisions. These provisions currently apply when a party files a motion with the court asking to unseal financial affidavits.

The recommendation would allow financial affidavits to be placed in a sealed envelope in the case file only under the court's own authority or when a party files a motion to do so. But a judge could not seal them unless he:

1. considers reasonable alternatives to public access;

2. states the overriding interest that sealing would protect (the parties' agreement would not be a sufficient basis for ordering that the documents be sealed);

3. explains his findings, except when he grants a motion to seal and the findings would reveal confidential information, in which case they would be placed in the sealed portion of the court file; and

4. directs the court clerk to immediately place in any case file containing sealed financial affidavits the time, date, scope, and duration if the sealing order, along with the judge's signed memorandum or court transcript indicating his reasoning, to which the public would have access.

Unless the judge orders otherwise, the date, time, and location of a hearing concerning sealing or restricting disclosure of financial affidavits would have to be listed on the court's calendar, which is publicly available and posted at every courthouse. Members of the public, including the media, could speak in support or opposition to the motion at that time.

The existing general sealing rule and the provision recommended for recession both require that orders sealing records be lifted when the matters they concern become relevant in a court hearing.

Action Recommended. Repeal P.B. 25-59A(h).

Comparison with Judicial Task Force. The task force's 38th recommendation is identical.

Ninth Recommendation: Amend CGS 46b-10 to Track the Language of Practice Book 7-4B, 7-4C, 25-59a, and 25-60

The committee recommends that the confidentiality statute governing settlement conferences in divorce, annulment, and separation matters be amended to conform with practice book rules creating the presumption that court filings in these matters be open to the public and press.

Discussion. It appears that this recommendation is intended to apply to the closed courtroom and sealed document provisions (CGS 46b-11 not CGS 46b-10). That statute allows judges to exclude the public and press from the courtroom when they are conducting hearings in family matters when they conclude that a child's welfare or the nature of the case requires it. The law also allows judges to order that records and other papers be kept confidential in these cases unless a person requesting their disclosure proves that he has good cause for requesting disclosure.

Public hearings would be required. Requests to seal documents could be made by any party, or the judge can order sealing on his own. Unless he orders otherwise, however, the judge must hold a public hearing before rendering his decision. The date, time, and location of the hearing would have to be listed in a separate section on he court's calendar, which is publicly available and posted at every courthouse. Members of the public, including the media, could speak in support or opposition to the record sealing at the hearing.

New standards would apply to sealing requests. The recommendation would not allow judges to order that records be sealed without:

1. considering reasonable alternatives to public access;

2. stating the overriding interest that sealing would protect (the parties' agreement would not be a sufficient basis for ordering that the documents be sealed);

3. explaining his findings, except when he grants a motion to seal and the findings would reveal confidential information, in which case this explanation would also be placed in the sealed portion of the court file; and

4. directing the court clerk to immediately place in any case file containing sealed documents the time, date, scope, and duration of the sealing order, along with the judge's signed memorandum or court transcript indicating his reasoning, to which the public would have access.

The standards would be more stringent when the request is to seal an entire court file. In that situation the recommendation would require the court to hold a public hearing within 15 days of receiving the request unless it orders otherwise.

In addition to the standards listed above, the court could not grant the request unless it had determined that there is no more narrowly tailored method available for overriding the public's interest in disclosure, such as redacting or sealing only a portion of the file. It must include in his decision each of the more narrowly methods he considered and why they would not be adequate.

It is unclear whether this recommendation assumes that the existing form of P.B. 25-59A(b) would be followed (automatically sealing financial affidavits), or should be read in conjunction with the commission's eighth recommendation, which would eliminate that procedure.

Action Recommended. Amend CGS 46b-11 to conform with P.B. 7-4B, 7-4c, 25-59A, and 25-60.

Comparison with Judicial Task Force. No comparable recommendation.

Tenth Recommendation: Amend CGS 46b-49 to Track the Language of Practice Book 7-4B, 7-4C, 25-59a, and 25-60

The committee recommends the statutes governing excluding the public from courtrooms be amended to conform to the open courtroom provisions in the practice book. The recommendation would apply when:

1. a family court magistrate conducts a hearing concerning child support orders or those requiring legally liable relatives to repay the state for its costs in providing the child welfare benefits; and

2. a court hearing concerns any family relations matter (i.e., most divorces, legal separations, marriage annulments, alimony, child support or custody, name changes, custody and visitation orders, wrongful imprisonment for failure to provide support , paternity, terminations of parental rights, child abuse or neglect or termination of parental rights, juvenile delinquency or status offenses, civil commitments, release from mental hospitals, conservatorship appointments and discharges, and all other matters concerning children or family relations that a judge determines); and

3. a parent is being prosecuted for failing to pay child support.

The current legal rule requires the court to determine if excluding the public is necessary.

Discussion. See ninth recommendation above.

Action Recommended. See ninth recommendation above.

Comparison with Judicial Task Force. No comparable recommendation.

Eleventh Recommendation: Make the Same Changes to the Parallel Provisions for the Family Magistrate Docket

It appears that the committee recommends that the Sixth through Tenth recommendations described above be applied to parallel provisions of the family support magistrate statutes. These statutes are presumably CGS

1. 46b-212o, which relates to choice of substantive and procedural laws when an out-of state child support matter is referred to Connecticut pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA); and

2. 46b-212x, which relates to confidential court records.

Discussion. It is unclear how the recommendation to amend URESA could be implemented, as it is controlled by federal requirements. CGS 46b-212o requires family support magistrates to follow the substantive and procedural law of the state from which the case has been referred. Under this provision, those states' open court laws apparently would override Connecticut's.

CGS 46b-212x allows family support magistrates to order, on their own authority or pursuant to existing court orders, that documents or court filings containing personally identifying information of the child or other party not be disclosed. The current standard governing this statute requires that nondisclosure orders are permissible when a magistrate finds that the health, safety, or liberty of a party or child would be unreasonably put at risk. He can make this finding in open court or in private proceedings where only one party is present (ex parte).

See discussion for the sixth through tenth recommendations above.

Action Recommended. Amend CGS 46b-212o and 46b-212x.

Comparison with Judicial Task Force. No comparable recommendation.

Twelfth Recommendation: Permit the Judicial Review Council to Disclose That It is Investigating a Complaint

The commission recommended that the legislature amend CGS 51-51L to permit the Judicial Review Council to publicly disclose that it is investigating a complaint against the judge when the council decides that disclosure is in the public interest.

Discussion. The commission concluded that (1) there are circumstances when the public interest in disclosure outweighs the privacy interest of the judge under investigation and (2) the council should have the authority to disclose the fact of the investigation in these instances.  The commission noted that the Statewide Grievance Committee is granted this authority when the statewide bar counsel has referred a complaint for investigation. 

Action Recommended. Legislation.

Comparison with Judicial Task Force. No comparable recommendation.

Thirteenth Recommendation: Make the Substance of an Admonishment to a Judge Public

The commission recommended that the legislature amend CGS 51-51L(b) to require that if the Judicial Review Council admonishes a judge, the substance of it be a matter of public record.

Discussion. The commission concluded that complaints filed against judges and attorneys should not be a matter of public record until probable cause is found, because it is fundamentally unfair to make these complaints a matter of public record unless and until an independent inquiry finds there is some basis for the complaint.  An admonishment is issued only after the Judicial Review Council has found the respondent has acted “in a manner which gives the appearance of impropriety or constitutes an unfavorable judicial or magisterial practice.”  With this independent finding, the commission believes the balance shifts and the policy of transparency of the judicial system outweighs the need for privacy and the substance of the admonishment should be a matter of public record

Action Recommended. Legislation.

Comparison with Judicial Task Force. No comparable recommendation

Fourteenth Recommendation: Amend Court Rules to Provide Standards for Determining What Information is Irrelevant, or Eliminate the Concept of Irrelevance, For Disciplinary Counsel and Discovery of a Complaint File

The commission recommended that the Rules Committee provide standards for “irrelevant information” as used in P.B. 2-34A(b)(3). This rule requires the disciplinary counsel to remove all “irrelevant information” from the complaint file after probable cause has been found and before permitting discovery of information in this file. But there are no standards to determine what information is relevant. The commission concluded that standards for relevance should be provided or the provision deleted so that all documents remain in the complaint file subject to reasonable discovery requests as determined by independent inquiry.

Action Recommended. Court rules.

Comparison with Judicial Task Force. No comparable recommendation.

Fifteenth Recommendation: Open Rules Committees' and Subcommittees' Records and Meetings to the Public

The commission recommends public access to Rules Committees and subcommittees' meetings and records.

Discussion. If the first recommendation is adopted the records and meetings of the Rules Committees and their subcommittees would be open to the public under FOIA and no further legislation or rule change would be required.

If the first recommendation is not adopted, this recommendation would give the public access to meetings and records it is presently denied. Rules committees recommend and judges vote on adopting and repealing rules and forms regulating pleading, practice, and procedure in judicial proceedings. In Rules Committee of the Superior Court v. Freedom of Information Commission, the state Supreme Court held that the Superior Court Rule Committee is not subject to FOIA because it “plays no role in the management of the internal institutional machinery of the court system, but, rather, formulates rules of practice that directly controls the conduct of litigation (192 Conn. 234 (1984)).

Since these meetings and records are not covered under FOIA and the recommendation is for a policy, rather than a statutory, change it is unclear (1) how soon after a request records must be provided; (2) where members of the public would file complaints if they are denied access; and (3) who would enforce the policy, including whether a hearing would be held on the complaint and who would hear it.

Action Recommended. Policy change by Appellate and Supreme Court judges.

Comparison with Judicial Task Force. The task force recommends that hearings and proceeding of the Rules committees be open to the public ( 1)

Sixteenth Recommendation: Open to the Public Executive Committee and Subcommittee Records and Meetings

The commission recommends that the records and meetings of the Executive Committee and its subcommittees should be open to the public except when they involve subjects that are exempt, privileged, or confidential by law or rule.

Discussion. If the first recommendation is adopted the records and meetings of the Executive Committee would be open to the public under FOIA and no further legislation or rule change would be required.

If the first recommendation is not adopted, this recommendation would give the public access to meetings and records that to date have been de facto closed to them. Currently, Executive Committee meetings are not publicly noticed.

Action Recommended. Policy change.

Comparison with Judicial Task Force. The task force recommends that hearings and proceeding of the Executive Committee be open to the public. However, “meeting” does not include meetings of the personnel search committee to fill executive level positions, chance meetings, social meetings unrelated to official business, collective bargaining strategy or negotiation meetings, administrative or staff meetings of single-member committees or taskforces, or communications of meeting or agenda notices ( 1).

Seventeenth Recommendation: Retain Limitation on Access to Judicial Performance Evaluations

The commission recommends the retention of current limitations on access to judicial performance evaluation forms and branch computer tabulations of those forms.

Discussion. By law, a judge's performance evaluation is subject to limited disclosure. It is available to the Judiciary Committee before any public hearing on the judge's nomination and to the Judicial Selection Commission in the performance of its duties. The law prohibits secondary disclosures (CGS 2-40a).

Since FOIA requires records to be publicly disclosed unless state or federal law prohibits their disclosure, these performance evaluations are currently exempt from disclosure.

Action Recommended. None.

Comparison with Judicial Task Force. The task force recommends the retention of the current law on public access to judicial performance evaluations ( 6).

Eighteenth Recommendation: Make Judges' Attendance Records Open to the Public

Discussion. Under FOIA, administrative records are subject to disclosure unless specifically exempted. If judges are considered court personnel, these attendance records are subject to disclosure as administrative records under FOIA.

Action Recommended. The senior associate justice has adopted this policy.

Comparison with Judicial Task Force. Make judges' attendance records open to the public ( 5).

Nineteenth Recommendation: Amend Court Rules to Make the Police Report That is the Basis for a Warrantless Arrest to Become Part of the Court File

The commission recommended that the judges amend P.B. 42-49A to provide that the police report that is the basis for the finding of probable cause for a warrantless arrest required by P.B. 37-12 become a part of the court file at the time of arraignment. When probable cause is found, that report must be open to the public unless the court seals it under the standard set forth in P.B. 42-49A(c). When no probable cause is found, that report must be sealed unless ordered unsealed by the court after notice is given to the parties and a hearing has taken place. In such cases, the court must apply the standard set forth in P.B. 42-49A(c). 

Discussion. The commission recommended that the presumption should be that all court documents are public records until a court finds that closure is necessary to preserve an interest that overrides the public's right to know. A form that permits the temporary ex parte sealing of the report prior to arraignment should be developed.

Summary of Rule 42-49A. This rule specifies that except as otherwise provided by court rules and by statute (see 36-2, 40-29 and 40-40 through 40-43 and CGS 54-33c) the judicial authority may not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited.

Upon written motion of the prosecuting authority or of the defendant, or upon its own motion, Rule 42-49A authorizes the court to order that files, affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited if it concludes that such order is necessary to preserve an interest that it determines overrides the public's interest in viewing such materials. The court must first consider reasonable alternatives to any such order, which may not be broader than necessary to protect this overriding interest.

An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding does not constitute a sufficient basis to issue such an order.

If the court issues such an order it must articulate the overriding interest being protected and specify its findings underlying such order and the duration of such order. If any finding would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record. The time, date, scope, and duration of any such order must be set forth in a writing signed by the judicial authority which upon issuance the court clerk shall immediately enter in the court file and publish by posting on a bulletin board adjacent to the clerk's office and accessible to the public. The judicial authority must order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order.

Except as otherwise ordered by the judicial authority, a motion to seal or limit the disclosure of affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding must be calendared so that notice to the public is given of the time and place of the hearing on the motion and to give the public an opportunity to be heard on it.

The notice of the time, date, and place of the hearing must be posted on a bulletin board adjacent to the clerk's office and accessible to the public. The procedures set forth in other court rules (see 7-4B and 7-4C) must be followed in connection with a motion to file affidavits, documents or other materials under seal or to limit their disclosure.

Action Recommended. Rules change.

Comparison to Judicial Task force. Recommendation 16 by the task force relates to the sealing of arrest warrant affidavits.

Twentieth Recommendation: Retain Connecticut Practice Book Sections that Establish Procedures for Closing a Court Room and Sealing Documents in Civil Cases

The commission concluded that P.B. 11-20 and 11-20A promote the public policy of open judicial proceedings and advance the basic concepts of transparency, accessibility and accountability in the Judicial Branch and, accordingly, should be retained.

Section 11-20 establishes procedures for closing a courtroom in a civil case. Section 11-20A regulates the procedures for sealing or limiting disclosure of documents in a civil case.  These sections contain presumptions that courtroom proceedings should be open to the public and documents filed with the court should be available to the public.  They provide that the judicial authority may not exclude the public from the courtroom or seal documents, or limit their disclosure unless it concludes it is necessary to preserve an interest that is superior to the public's interest in attending the proceeding or viewing the materials. 

These sections mandate that (1) the public be notified of potential closure of a courtroom or sealing of documents and have an opportunity to be heard, (2) the judge articulate an overriding interest in closure or sealing and specify findings underlying such an order, and (3) any closure or sealing order be no broader then necessary

Action Recommended. None.

Comparison to Task Force. No comparable recommendation. But recommendation nine deals with access to court records.

Twenty-First Recommendation: Enact Legislation to Improve the Procedural Rights to Appeal Orders Affecting Access to Records and Proceedings

The commission recommended that CGS 51-164x be amended to improve the procedural rights to appeal orders affecting access to judicial proceedings and files.

Discussion.  Connecticut General Statute 51-164x establishes a “fast track” right to appeal certain orders affecting access to judicial proceedings and files.  The Commission concluded that the statute be retained, but be amended in two respects to improve appellate rights associated with orders affecting access to judicial proceedings and files.  First, it recommended that the statute be changed to permit filing a petition for review within three business days from the issuance of the court order rather than 72 hours from the issuance of the order.  Second, it recommended that the statute be changed to delete the catch-all language that excludes from the operation of the statute any order based on any statute that permits the closing or sealing of court proceedings or files.

Action Recommended. Legislation.

Comparison to Task force. No comparable recommendation.

Twenty-Second Recommendation: Retain 26 Miscellaneous Statutes Relating to Access to Court Files and Proceedings and Change Seven Others to Improve Access by Eliminating Statutory Protections and Placing Control Under Court Rule

Discussion.  The commission accepted the recommendation of the subcommittee on civil proceedings. The sub-committee recommended certain amendments to certain statutes to improve access to judicial files and proceedings.  It also recommended that certain statutes not be changed.

The following is the list of the 26 statutes the subcommittee recommended be retained without any changes:

Table 1: Subcommittee Recommendations

Statute

Subject

CGS 1-83

Confidentiality of certain information contained in Statement of Financial Interests

CGS 4-104

Sealing of hospital records produced pursuant to subpoena

CGS 10-15b

Sealing of student records produced pursuant to subpoena

CGS 10-153f(b)

Confidentiality of communications to mediator during teacher mediations

CGS 17a-487

Nondisclosure of records related to investigation of a serious injury or death conducted by the Department of Mental Health and Addiction Services and Department of Children and Families

CGS 17a-548

Confidentiality of certain hospital records regarding a patient's mental health

CGS 17a-694

Reports on alcohol or drug dependency confidentiality

CGS 35-55

Protection of trade secrets by court; provides for protective orders and in-camera review

Table 1: -Continued-

Statute

Subject

CGS 36a-43

Disclosure of bank records pursuant to subpoena or court order

CGS 51-46a

Confidentiality of certain information contained in Statement of Financial Interests filed by judges

CGS 51-81d(f)

Confidentiality of certain information given or received in connection with crisis intervention and referral for assistance for attorneys suffering from alcohol, substance abuse, or gambling

CGS 51-232

Confidentiality of juror questionnaire

CGS 52-146b

Privileged communication made to clergyman

CGS 52-146c

Privileged communication between psychologist and patient

CGS 52-146d-j

Privileged communication between psychiatrist and patient

CGS 52-146k

Privileged communication between women's or sexual assault counselor and victim

CGS 52-146l

Disclosure of privileged communications by interpreter

CGS 52-146m

Privilege of all communication between deaf or hearing impaired person and operator of special telecommunications equipment

CGS 52-146n

Disclosure of confidential communications between Judicial Department employee and employee assistance program

CGS 52-146o

Disclosure of patient communication or information by physician, surgeon, or health care provider

CGS 52-146q

Disclosure of confidential communications with social worker

CGS 52-146r

Disclosure of confidential communications between governmental attorney and public official

CGS 52-146s

Disclosure of confidential information by professional counselor

CGS 52-400a

Protective orders in connection with post-judgment procedures

CGS 54-240f

Confidentiality of marriage records

CGS 54-240n

Nondisclosure of addresses that are confidential under an address confidentiality program established by the secretary of state

The commission accepted the recommendation of the subcommittee on civil proceedings regarding changes to certain statutes to improve access to judicial files and proceedings. 

Following is the list of the statutes the subcommittee reviewed with the action recommended:

1. CGS 12-242vv (Pertains to confidentiality of taxpayer information)

Under existing law, all court records in a proceeding by the Office of Policy and Management (OPM) secretary to take certain rights through eminent domain and to provide just compensation for them must be sealed unless the owner files a condemnation appeal, or files any other motion, application, or complaint with the court concerning the taking rights. The affected rights are those of holders of certain state and municipal bonds to exclude the interest on those bonds earned or accrued after January 1, 1992, from their corporation business taxes. (Under federal law, a state cannot tax interest on federal bonds unless it taxes interest on its own bonds. Excluding interest on the bonds affected by this act jeopardized Connecticut's ability to tax federal bond interest. Thus a 1995 public act (PA 95-2) authorizes the OPM secretary to take these rights through eminent domain and to provide just compensation for them. It also establishes a process for bondholders to claim compensation and to adjudicate these claims.

The commission recommended eliminating the statutory requirement that all court records in such a proceeding be sealed unless the owner files a condemnation appeal, or files any other motion, application, or complaint with the court concerning the taking rights. Such court records can still be sealed in accordance with Practice Book provisions if appropriate.

2. CGS 17a-688 (Records pertaining to substance abuse programs alcohol and drugs)

By law, all records that the court maintains of cases coming before it under various programs involving alcohol and drug abusers (See CGS 17a-465a, 17a-673, 17a-677 and 17a-680 to 17a-690, inclusive) must be sealed and available only to the alleged abuser or his counsel unless the court, after a hearing determines such records should be disclosed for cause shown.

The commission recommends repealing this requirement thus making them presumptively open.

3. CGS 19a-216a(b)(6) (Pertains to confidentiality of medical records of persons examined by communicable disease control clinic)

By law (CGS 19a-216a(b)(6)) the personal medical records of people examined or treated in a communicable disease clinic must be held strictly confidential by the local director of health and his authorized agents and may not be released or made public or be subject to discovery proceedings. But release may be made of personal medical information, excluding epidemiological information, by court order as necessary to enforce any provisions of the general statutes or state regulations or local ordinances pertaining to public health and safety provided the order explicitly finds each of the following:

1. the information sought is material, relevant and reasonably calculated to be admissible evidence during the legal proceeding;

2. the probative value of the evidence outweighs the individual's and the public's interest in maintaining its confidentiality;

3. the merits of the litigation cannot be fairly resolved without the disclosure; and

4. the evidence is necessary to avoid substantial injustice to the party seeking it and the disclosure will result in no significant harm to the person examined or treated.

Before making these findings, the court may examine the information in camera. The law requires that if the information meets the test of necessary evidence as listed above, it must be disclosed only in camera and must be sealed by the court on conclusion of the proceeding.

The commission recommends eliminating the requirement that such evidence only be disclosed in camera and that the court seal it after the proceeding. The commission noted that the information can still be sealed in accordance with Practice Book provisions if appropriate.

4. CGS 19a-343a(c) (Provides for sealing of affidavit in an action to abate a public nuisance)

Under existing law the court may grant a temporary ex parte order to abate the public nuisance if the state asks for it in its application. The court must direct the state to notify the defendant and provide him with a copy of the ex parte order. At the court hearing a defendant may show cause why the abatement order should be modified or vacated. No such ex parte order may be granted unless it appears from the specific facts shown by affidavit and by complaint that there is probable cause to believe that a public nuisance exists and the temporary relief requested is necessary to protect public health, welfare, or safety. The show cause hearing must be scheduled within five business days after service is effected by the state.

Under existing law, the affidavit may be ordered sealed by the court or judge upon a finding that the state's interest in non-disclosure substantially outweighs the defendant's right to disclosure.

The commission recommended that the statutory authority of the court to seal the affidavit be eliminated. The affidavit can still be sealed in accordance with Practice Book provisions if appropriate.

5. CGS 36a-21 (Provides for protective order, sealing of records and exclusion of public from court proceedings to protect bank examination and investigative reports)

By law, certain banking records may not (1) be disclosed by the banking commissioner or any Department of Banking employee or (2) be subject to public inspection or discovery. The records are:

1. examination and investigation reports and information contained in or derived from such reports, including examination reports prepared by the commissioner or prepared on behalf of or for the commissioner's use;

2. confidential, supervisory, or investigative information obtained from a state, federal, or foreign regulatory or law enforcement agency; and

3. information obtained, collected or prepared in connection with examinations, inspections, or investigations, and complaints from the public received by the Department of Banking, if such records are protected from disclosure under federal or state law or, in the commissioner's opinion, such records would disclose, or would reasonably lead to the disclosure of: (A) investigative information the disclosure of which would be prejudicial to such investigation, until the investigation and all related administrative and legal actions are concluded; (B) personal or financial information, including account or loan information, without the written consent of the person or persons to whom the information pertains; or (C) information that would harm the reputation of any person or affect the safety and soundness of any person whose activities in this state are subject to the supervision of the commissioner, and the disclosure of such information would not be in the public interest.

By law, the banking commissioner may, without waiving any privilege, disclose certain bank records for any appropriate supervisory, governmental, law enforcement, or other public purpose. Any such disclosure must be made under safeguards designed to prevent further dissemination of such records.

Under current law, the court may issue an order in appropriate circumstances to protect the confidentiality of any such record and order that any such record on file with the court or filed in connection with the court proceeding be sealed and that the public be excluded from any portion of the proceeding at which any such record is disclosed.

The commission recommends eliminating this statutory authority of the court to issue a protective order. The material can still be sealed and protected in accordance with Practice Book provisions if appropriate.

6. CGS 38a-913 (Pertains to confidentiality of court records related to proceedings involving delinquency of insurer)

Under existing law, in all proceedings and judicial reviews concerning a delinquency petition filed by the insurance commissioner, all records of the insurer, other documents, and all Insurance Department files and court records and papers, so far as they pertain to or are a part of the record of the proceedings, must remain confidential. Existing law also requires that in such proceedings and reviews all papers filed with the clerk of the Superior Court must be held by the clerk in a confidential file, except as is necessary to obtain compliance with any order, entered in connection with such proceedings, unless:

1. the Superior Court, after hearing arguments in chambers, orders otherwise;

2. the insurer requests that the matter be made public, or

3. the commissioner applies for an order under CGS 38a-91 (this authorizes the commissioner to apply by petition to the Superior Court for an order authorizing him to rehabilitate a domestic insurer ) or CGS 38a-919 (this authorizes the commissioner to petition the Superior Court for an order directing him to liquidate a domestic insurer or an alien insurer domiciled).

The commission recommends that these confidentiality requirements be eliminated.

7. CGS 51-164x (Pertains to review of order prohibiting attendance at court session or sealing of records)

The commission recommended increasing the time for appealing certain court orders that prohibit people from attending any court session (other than juvenile delinquency or youthful offender proceedings) from 72 hours to three business days. It also recommended eliminates an exception to such appeal rights for any other provision of the General Statutes under which the court is authorized to prohibit people from attending a court session, whether at a pretrial or trial stage, (CGS 541-164x(a)).

The commission makes the same recommendation concerning the time to appeal from court orders that seal or limit the disclosure to any files, affidavits, documents, or other material on file with the court or filed in connection with a court proceeding. It also eliminates an exception to such appeal rights for any other provision of the General Statutes under which the court is authorized to seal or limit the disclosure of files, affidavits, documents, or materials, whether at the pretrial or trial stage (CGS 541-164x(b)).

Action Recommended. Legislation.

Comparison to Task Force. No comparable recommendation.

Twenty-Third Recommendation: Consider a Constitutional Amendment to Clarify the Courts' Rulemaking Authority

After the Judicial Branch and the legislature have had an opportunity to implement these recommendations, the commission recommends that the governor appoint a commission to consider adopting a constitutional amendment to clarify the courts' rulemaking authority.

Action Recommended. The commission recommends that the governor appoint a commission.

Comparison to Task Force. No comparable recommendation.

TABLE BRIEFLY COMPARING THE TWO REPORTS

Table 2 below briefly describes the commission's recommendations and recommended action and indicates whether the Judicial Branch's task force has a comparable recommendation.

Table 2: Governor's Commission's Recommendations

Commission Recommendations

Action Recommended

Comparable Judicial Branch Task Force Recommendation

First Recommendation:

Define “administrative functions” as used in FOIA.

Legislation

Recommendations 1, 9, and 20

Second Recommendation:

The Judicial Branch should adopt a rule that explicitly states a presumption that all appellate proceedings are open for broadcasting, televising, recording, and photographing.

Court rules

Recommendation 29

Third Recommendation:

The Judicial Branch, Connecticut Council on Freedom of Information, Connecticut Broadcasters Association, and CT-N should collaborate on a three year pilot program to broadcast select Superior Court proceedings.

Legislative action and funding through public and private sources

Recommendations 30-32

Fourth Recommendation:

Promulgate rules for the Superior Court pilot program.

Court rules

Recommendations 30-32

Fifth Recommendation:

Create a Judicial Media Committee to further communications among the Judicial Branch, media, lawyers, and others.

Administrative (the Judicial Branch has appointed members to such a committee)

Recommendations 28 and 35

Sixth Recommendation:

Amend CGS 46b-122 by adopting legislation proposed in 2005 (HB 6812) that opens proceedings concerning abused, neglected, uncared for, and dependent children, and termination of parental rights.  

Legislative

No comparable recommendation

Seventh Recommendation:

Amend CGS 46b-138 to be consistent with P.B. 32a-4 regarding the procedure for interviewing a child witness.

Legislation

No comparable recommendation

Eighth Recommendation:

Repeal P.B. 25-59A(h), regarding automatic sealing of financial affidavits in family cases.  

Court rules

Recommendation 38

Ninth Recommendation:

Amend confidentiality statute about settlement conferences in divorce, annulment, and separation matters (CGS 46b-10) to track P.B. 7-4B, 7-4C, 25-59A, and 25-60.

Legislation

No comparable recommendation

Tenth Recommendation:

Conform the statutes that exclude the public from courtrooms to the open courtroom provisions in the practice book, which affects certain proceedings (CGS 46b-49 and P.B. 7-4B, 7-4C, 25-59A and 25-60).

Legislation

No comparable recommendation

Eleventh Recommendation:

Make the same changes to the parallel provisions for the family magistrate docket.

Legislation

No comparable recommendation

Twelfth Recommendation:

Permit the Judicial Review Council to publicly disclose that it is investigating a complaint against a judge when the council deems it in the public interest.

Legislation

No comparable recommendation

Thirteenth Recommendation:

Make the substance of a judge's admonishment by the Judicial Review Council a public record.

Legislation

No comparable recommendation

Fourteenth Recommendation:

Provide standards to determine “irrelevant information” for purposes of the disciplinary counsel permitting discovery of a complaint file.

Court rules

No comparable recommendation

Fifteenth Recommendation:

Open the records and meetings of the Rules Committee and its subcommittees to the public.

Policy change (apparently by vote of appellate and supreme court judges)

Recommendation one

Sixteenth Recommendation:

Open the records and meetings of the Executive Committee of the Judges and its subcommittees to the public except when they involve subjects that are exempt, privileged, or confidential by law or rule.

Policy change (vote by judges)

Recommendation one

Seventeenth Recommendation:

Retain limitation on access to judicial performance evaluations.

None required

Recommendation 6

Eighteenth Recommendation:

Make judges' attendance records open to the public.

Policy already adopted by the senior associate justice

Recommendation 5

Nineteenth Recommendation:

Amend court rules to make police reports that show probable cause for making a warrantless arrest part of the court file at the time of arraignment.

Court rules

Recommendation 16

Twentieth Recommendation:

Retain court rules on procedures for closing a court room and sealing documents in civil cases.

None required

No comparable recommendation but recommendation 9 deals with access to court records

Twenty-First Recommendation:

Enact legislation to improve the procedural rights to appeal orders affecting access to judicial proceedings and files.

Legislation

No comparable recommendation

Twenty-Second Recommendation:

Retain 26 miscellaneous statutes relating to access to files and proceedings and change seven others to improve access.

Legislation

No comparable recommendation

Twenty-Third Recommendation:

After implementing these recommendations, the governor should appoint a commission to consider a constitutional amendment to clarify the courts' rule making authority.

Appoint a commission

No comparable recommendation

SN-E/GC/CR/SP:ro/ts